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§ 69; Mich. Court Rules Ann. (Searl, 1933) Rule 42; N. J. Comp. Stat. (2 Cum. Supp. 1911-1924) ch. 163, § 294; N. Y. C. P. A. (1937) §§ 322, 323; Wis. Stat. (1935) § 327.22. Rule 37. Refusal to Make Discovery: Consequences.

The provisions of this rule authorizing orders establishing facts or excluding evidence or striking pleadings, or authorizing judgments of dismissal or default, for refusal to answer questions or permit inspection or otherwise make discovery, are in accord with Hammond Packing Co. v. Arkansas, 212 U. S. 322 (1909), which distinguishes between the justifiable use of such measures as a means of compelling the production of evidence, and their unjustifiable use, as in Hovey v. Elliott, 167 U. S. 409 (1897), for the mere purpose of punishing for contempt.

165714°-39--18

VI. TRIALS

Rule 38. Jury Trial of Right.

This rule provides for the preservation of the constitutional right of trial by jury as directed in the enabling act (Act of June 19, 1934, 48 Stat. 1064, U. S. C., Title 28, § 723c), and it and the next rule make definite provision for claim and waiver of jury trial, following the method used in many American states and in England and the British Dominions. Thus the claim must be made at once on initial pleading or appearance under Ill. Rev. Stat. (1937) ch. 110, § 188; 6 Tenn. Code Ann. (Williams, 1934) § 8734; compare Wyo. Rev. Stat. Ann. (1931) § 89-1320 (with answer or reply); within 10 days after the pleadings are completed or the case is at issue under 2 Conn. Gen. Stat. (1930) § 5624; Hawaii Rev. Laws (1935) § 4101; 2 Mass. Gen. Laws (Ter. Ed., 1932) ch. 231, § 60; 3 Mich. Comp. Laws (1929) § 14263, Mich. Court Rules Ann. (Searl, 1933) Rule 33 (15 days); England (until 1933) O. 36, r. r. 2 and 6; and Ontario Jud. Act (1927) § 57 (1) (4 days, or, where prior notice of trial, 2 days from such notice); or at a definite time varying, under different codes, from 10 days before notice of trial to 10 days after notice, or, as in many, when the case is called for assignment, Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 3802; Calif. Code Civ. Proc. (Deering, 1937) § 631, par. 4; Iowa Code (1935) § 10724; 4 Nev. Comp. Laws. (Hillyer, 1929) § 8782; N. M. Stat. Ann. (Courtright, 1929) § 105-814; N. Y. C. P. A. (1937) § 426, subdivision 5 (applying to New York, Bronx, Richmond, Kings, and Queens counties); R. I. Pub. Laws 1929, ch. 1327, amending R. I. Gen. Laws (1923) ch. 337, § 6; Utah Rev. Stat. Ann. (1933) § 104-23-6; 2 Wash. Rev. Stat. Ann. (Remington, 1932) § 316; England (4 days after notice of trial), Administration of Justice Act (1933) 6 and amended rule under the Judicature Act, (The Annual Practice, 1937) O. 36, г. 1; Australia High Court Procedure Act (1921) § 12, Rules, O. 33, r. 2; Alberta

Rules of Ct. (1914) 172, 183, 184; British Columbia Sup. Ct. Rules (1925) O. 36, r. r. 2, 6, 11, and 16; New Brunswick Jud. Act (1927) O. 36, r. r. 2 and 5. See James, Trial by Jury and the New Federal Rules of Procedure (1936), 45 Yale L. J. 1022.

Rule 81 (c) provides for claim for jury trial in removed actions.

The right to trial by jury as declared in U. S. C., Title 28, § 770 (Trial of issues of fact; by jury; exceptions), and similar statutes, is unaffected by this rule. This rule modifies U. S. C., Title 28, § 773 (Trial of issues of fact; by court).

Rule 39. Trial by Jury or by the Court.

The provisions for express waiver of jury trial found in U. S. C., Title 28, § 773 (Trial of issues of fact; by court) are incorporated in this rule. See Rule 38, however, which extends the provisions for waiver of jury. U. S. C., Title 28, § 772 (Trial of issues of fact; in equity in patent causes) is unaffected by this rule. When certain of the issues are to be tried by jury and others by the court, the court may determine the sequence in which such issues shall be tried. See Liberty Oil Co. v. Condon Nat. Bank, 260 U. S. 235 (1922).

A discretionary power in the courts to send issues of fact to the jury is common in state procedure. Compare Calif. Code Civ. Proc. (Deering, 1937) § 592; 1 Colo. Stat. Ann. (1935) Code Civ. Proc., ch. 12, § 191; Conn. Gen. Stat. (1930) § 5625; 2 Minn. Stat. (Mason, 1927) § 9288; 4 Mont. Rev. Codes Ann. (1935) § 9327; N. Y. C. P. A. (1937) § 430; 2 Ohio Gen. Code Ann. (Page, 1926) § 11380; 1 Okla. Stat. Ann. (Harlow, 1931) § 351; Utah Rev. Stat. Ann. (1933) § 104-23-5; 2 Wash. Rev. Stat. Ann. (Remington, 1932) § 315; Wis. Stat. (1935) § 270.07. See Equity Rule 23 (Matters Ordinarily Determinable at Law When Arising in Suit in Equity to be Disposed of Therein) and U. S. C., Title 28, § 772 (Trial of issues of fact; in equity in patent causes); Colleton Merc. Mfg. Co. v. Savannah River Lumber Co., 280 Fed. 358 (C. C. A. 4th, 1922); Fed. Res. Bk. of San Francisco v. Idaho Grimm Alfalfa Seed Growers' Ass'n, 8 F. (2d) 922 (C. C. A. 9th, 1925), cert. den. 270 U. S. 646 (1926); Watt v. Starke, 101 U. S. 247, 25 L. Ed. 826 (1879).

Rule 40. Assignment of Cases for Trial.

U. S. C., Title 28, § 769 (Notice of case for trial) is modified. See Equity Rule 56 (On Expiration of Time for Depositions, Case Goes on Trial Calendar). See also Equity Rule 57 (Continuances).

For examples of statutes giving precedence, see U. S. C., Title 28, § 47 (Injunctions as to orders of Interstate Commerce Commission); § 380 (Injunctions; alleged unconstitutionality of state statutes); § 380a (Same; Constitutionality of federal statute); § 768 (Priority of cases where a state is party); Title 15, § 28 (Antitrust laws; suits against monopolies expedited); Title 22, § 240 (Petition for restoration of property seized as munitions of war, etc.); and Title 49, § 44 (Proceedings in equity under interstate commerce laws; expedition of suits).

Rule 41. Dismissal of Actions.

Note to Subdivision (a). Compare Ill. Rev. Stat. (1937) ch. 110, § 176, and English Rules Under the Judicature Act (The Annual Practice, 1937) O. 26.

Provisions regarding dismissal in such statutes as U. S. C., Title 8, § 164 (Jurisdiction of district courts in immigration cases) and U. S. C., Title 31, § 232 (Liability of persons making false claims against United States; suits) are preserved by paragraph (1).

Note to Subdivision (b). This provides for the equivalent of a nonsuit on motion by the defendant after the completion of the presentation of evidence by the plaintiff. Also, for actions tried without a jury, it provides the equivalent of the directed verdict practice for jury actions which is regulated by Rule 50.

Rule 42. Consolidation; Separate Trials.

Subdivision (a) is based upon U. S. C., Title 28, § 734 (Orders to save costs; consolidation of causes of like nature) but in so far as the statute differs from this rule, it is modified.

For comparable statutes dealing with consolidation see Ark. Dig. Stat. (Crawford & Moses, 1921) § 1081; Calif. Code Civ. Proc. (Deering, 1937) § 1048; N. M. Stat. Ann. (Courtright, 1929) § 105–828; N. Y. C. P. A. (1937) §§ 96,

96a, and 97; American Judicature Society, Bulletin XIV, (1919) Art. 26.

For severance or separate trials see Calif. Code Civ. Proc. (Deering, 1937) § 1048; N. Y. C. P. A. (1937) § 96; American Judicature Society, Bulletin XIV (1919) Art. 3, § 2 and Art. 10, § 10. See also the third sentence of Equity Rule 29 (Defenses-How Presented) providing for discretionary separate hearing and disposition before trial of pleas in bar or abatement, and see also Rule 12 (d) of these rules for preliminary hearings of defenses and objections.

For the entry of separate judgments, see Rule 54 (b) (Judgment at Various Stages).

Rule 43. Evidence.

Note to Subdivision (a). The first sentence is a restatement of the substance of U. S. C., Title 28, § 635 (Proof in commonlaw actions), § 637 (Proof in equity and admiralty), and Equity Rule 46 (Trial-Testimony Usually Taken in Open Court Rulings on Objections to Evidence). This rule abolishes in patent and trade-mark actions, the practice under Equity Rule 48 of setting forth in affidavits the testimony in chief of expert witnesses whose testimony is directed to matters of opinion. The second and third sentences on admissibility of evidence and Subdivision (b) on contradiction and cross-examination modify U. S. C., Title 28, § 725 (Laws of states as rules of decision) in so far as that statute has been construed to prescribe conformity to state rules of evidence. Compare Callahan and Ferguson, Evidence and the New Federal Rules of Civil Procedure, 45 Yale L. J. 622 (1936), and Same: 2, 47 Yale L. J. 195 (1937). The last sentence modifies to the extent indicated U. S. C., Title 28, § 631 (Competency of witnesses governed by State laws). Note to Subdivision (b). See 4 Wigmore on Evidence (2nd ed., 1923) § 1885 et seq.

Note to Subdivision (c). See Equity Rule 46 (TrialTestimony Usually Taken in Open Court Rulings on Objections to Evidence). With the last sentence compare Dowagiac v. Lochren, 143 Fed. 211 (C. C. A. 8th, 1906). See also Blease v. Garlington, 92 U. S. 1 (1876); Nelson v. United States, 201 U. S. 92, 114 (1906); Unkle v. Wills, 281 Fed. 29 (C. C. A. 8th, 1922).

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